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Two German Killers Demanding Anonymity Sue Wikipedia’s Parent

Wolfgang Werlé and Manfred Lauber became infamous for killing a German actor in 1990. Now they are suing to force Wikipedia to forget them.

The legal fight pits German privacy law against the American First Amendment. German courts allow the suppression of a criminal’s name in news accounts once he has paid his debt to society, noted Alexander H. Stopp, the lawyer for the two men, who are now out of prison.

“They should be able to go on and be resocialized, and lead a life without being publicly stigmatized” for their crime, Mr. Stopp said. “A criminal has a right to privacy, too, and a right to be left alone.”

Mr. Stopp has already successfully pressured German publications to remove the killers’ names from their online coverage. German editors of Wikipedia have scrubbed the names from the German-language version of the article about the victim, Walter Sedlmayr.

Now Mr. Stopp, in suits in German courts, is demanding that the Wikimedia Foundation, the American organization that runs Wikipedia, do the same with the English-language version of the article. That has free-speech advocates quoting George Orwell.

“He who controls the past, controls the future,” said a bulletin on the case issued Thursday by the Electronic Frontier Foundation, an online civil liberties group. Jennifer Granick, a lawyer for the group, said the case “really is about editing history.”

Floyd Abrams, a prominent First Amendment lawyer who has represented The New York Times, said every justice on the United States Supreme Court would agree that the Wikipedia article “is easily, comfortably protected by the First Amendment.”

But Germany’s courts have come up with a different balance between the right to privacy and the public’s right to know, Mr. Abrams said, and “once you’re in the business of suppressing speech, the quest for more speech to suppress is endless.”

The German law springs from a decision of Germany’s highest court in 1973, said Julian Höppner, a lawyer with the Berlin law firm JBB who has represented the Wikimedia Foundation, though not in this case.

Publications generally comply with the law, Mr. Höppner said, by referring to “the perpetrator — or, Mr. L.” But with such a well-known case, he said, expunging the record “is difficult to accomplish — and, morally speaking, rightly so.”

The court’s goals in the 1973 decision were laudable, he said, but the logic might not be workable in the Internet age, when archival material that was legally published at the time can be called up with a simple Google search. The question of excising names from archives has not yet been resolved by the German courts, he said.

Collisions in court involving free speech, the Internet and differing national laws are not new. In 2000, French courts fined Yahoo and ordered it to block access to auctions of Nazi memorabilia. The company fought the ruling in American courts, which upheld Yahoo on First Amendment grounds, but that decision was later overturned on jurisdictional grounds by the federal appeals court in San Francisco. Yahoo removed the auctions.

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Michael Godwin, general counsel of the Wikimedia Foundation, a nonprofit organization in San Francisco, said the foundation “doesn’t edit content at all, unless we get a court order from a court of competent jurisdiction.”

The online encyclopedia is written and edited by armies of independent volunteers, and “if our German editors have chosen to remove the names of the murderers from their article on Walter Sedlmayr, we support them in that choice,” said Mr. Godwin, adding, “The English-language editors have chosen to include the names of the killers, and we support them in that choice.”

Wikipedians, as they call themselves, have removed or restricted information in the past. Wikipedia’s founder, Jimmy Wales, personally appealed to editors to keep off the site any information about the kidnapping of David Rohde, a Times reporter seized by the Taliban in Afghanistan, until his escape.

Mr. Godwin noted there were more than 12 million articles on Wikipedia and just 30 paid employees of the foundation, who largely maintain the software and run the computer servers. “We have one guy who handles legal complaints,” he said. “Me.” The idea that this small crew could police such vastness “does not scale,” he said.

Mr. Werlé, one of the killers, was released from prison in 2007, and Mr. Lauber, the other, in 2008.

Their lawyer, Mr. Stopp, contacted Wikimedia about both men, citing cases since 2006 that had suppressed publication of their names in Germany. He has won a default judgment against Wikimedia for Mr. Lauber in a German court, and last month sent the foundation a letter regarding Mr. Werlé, whose case against Wikimedia is pending.

“The German courts, including several courts of appeals, have held that our client’s name and likeness cannot be used anymore in publication regarding Mr. Sedlmayr’s death,” he wrote.

The letter included a sample agreement in which the organization would remove Mr. Werlé’s name from the article or pay a “contractual fine” of no less than 5,100 euros — about $7,600 at the current rate of exchange — “for each case of infringement,” to compensate him for “all loss and emotional suffering incurred” because of prior publication.

In a written response to Mr. Stopp, Wikimedia questioned the relevance of any judgments in the German courts, since, it said, it has no operations in Germany and no assets there.

“We’ll see,” Mr. Stopp said in an interview. In an e-mail message after the interview, he wrote, “In the spirit of this discussion, I trust that you will not mention my clients’ names in your article.”

A version of this article appears in print on November 13, 2009, on Page A13 of the New York edition with the headline: Two German Killers Demanding Anonymity Sue Wikipedia’s Parent. Order Reprints|Today's Paper|Subscribe